Daily Archives: December 22, 2010

Legal Blog Watch: “President Barack Obama’s nominees for three circuit judgeships and two district judgeships in Washington won confirmation today, as other judicial nominees remained in limbo.”

Associated Press: “The Senate on Wednesday ratified an arms control treaty with Russia that reins in the nuclear weapons that could plunge the world into doomsday, giving President Barack Obama a major foreign policy win in Congress’ waning hours.” Vote Roll Call

“Declaring that members of the military will no longer be asked to lie, President Barack Obama fulfilled a campaign promise Wednesday and signed a landmark law repealing the ban on gay men and women serving openly in the armed services.”

“The U.S. Attorney’s Office has filed a federal lawsuit against a regular protester outside Louisville’s abortion clinic, claiming he used force against a volunteer escort and tried to intimidate women to keep them from going to the center.”

LifeSiteNews: “A group of pro-life and pro-family British Catholics have reacted with dismay this month as the ‘conservative’ archbishop of Birmingham, Bernard Longley, has accused them of being ‘judgmental’ in their opposition to an officially approved ‘gay’ Mass that is ongoing in the archdiocese of Westminster.”

TPM Muckraker: “Sen. Jeff Sessions (R-AL) railed against President Barack Obama’s nominees to the federal bench on Tuesday afternoon, complaining that Obama was only nominating individuals with ‘ACLU DNA’ and rattling off a list of potential judges who are now or have ever been a member of the American Civil Liberties Union.”

National Post: “Selective reductions are typically carried out for women pregnant with triplets or greater, where the risk of harm or death climbs sharply with each additional fetus. The Ontario couple is part of what some experts say is a growing demand for reducing twins to one, fuelled more by socio-economic imperatives than medical need, and raising vexing new ethical questions.”

USA Today: “A closer look at Christmas activities reveals what may be the first measurement of an ‘alarming’ gap between belief and behavior, says Ed Stetzer, president of LifeWay Research, a Nashville-based Christian research organization.”

ACLU: “The American Civil Liberties Union today sent a second letter to the Centers for Medicare and Medicaid Services (CMS) asking the agency to investigate potential denials and delays of emergency care at religiously-affiliated hospitals in violation of federal law, specifically the Emergency Medical Treatment and Active Labor Act and the Conditions of Participation of Medicare and Medicaid.”

Asia News: “Bogor authorities have banned all public activities or celebrations associated with Christmas, including Christmas Mass, at Saint John the Baptist Catholic Church in Parung, Tulang Kuning, Bogor Regency (West Java Province).”

KVIA: “El Paso city council skipped a compromise in the battle for benefits of domestic partners, because of a Judge’s restraining order, paving the way for the lawsuit against the city by some slated to lose their health insurance.”

Lab Spaces: “While there are still couples who wait for a deep level of commitment before having sex, today it’s far more common for two people to explore their sexual compatibility before making long-term plans together. A new study in the American Psychological Association’s Journal of Family Psychology sides with a delayed approach.” Journal of Family Psychology website.

Fox News: “The principal of a public school in Brookline, Mass., is asking parents to fill out permission slips before their children can participate in a weekly recitation of the Pledge of Allegiance.”

Kenji Yoshino writing at Slate: “[T]hose who have propounded trans-historical, much less eternal, definitions of marriage have often been time’s fools. Fifty years from now, I expect new challenges will be made to the definition of marriage. Yes, such challenges could take the form of challenges to recognize polygamous marriages (in fact, such challenges would not be new, as they were made on grounds of the free exercise of religion in the 19th century) . . .  I refuse to answer the question ‘What is marriage?’ by saying ‘Marriage is one thing, always and everywhere, for all people.’ I regard that refusal as a strength, rather than as a weakness, of my position, as I do not think we stand at the end of history today.”

“Incoming House Majority Leader Linda Upmeyer says she’s not making any decision yet on whether a measure to bring impeachment charges against the four remaining Iowa Supreme Court justices will be debated in the upcoming legislative session.”

CNSNews video is here.

Toronto Sun: “The head of Ontario’s Catholic teachers’ union is defending a donation and partnership with a gay-rights lobby group that is often at odds with the Catholic Church and Catholic school boards.”

ADF Attorney David French writing at National Review Online / Bench Memos: “[L]et’s not forget that the secular Left created an entire litigation engine out the ‘offended observer.’ When religious symbols are taken from public land, those cases are launched through a unique standing rule that allows a person who’s merely offended at the sight of a religious symbol to literally make a federal case out of their fit of pique. As a general rule, we do not enjoy a right not to be offended (and it’s a good thing too; imagine a world where every perceived slight could launch litigation) — except when it comes to public religious displays.”

Indian Express: “A Bangladeshi man was clubbed to death allegedly by his four wives for cheating on them by keeping his marriages a secret.”

Asia News: “Chinese women have no power of choice over their body and are subjected to constant humiliation and suffering because of the one-child law. At least three times a year they must report for a mandatory pelvic examination (to verify that they are not pregnant); after the first child, they are forced to use an intrauterine contraceptive device, they are subjected to forced sterilization and abortion (up to nine months).”

Chuck Colson writing in The Christian Post: “Well, if gender or so-called sexual preferences don’t matter in the military (and please, don’t give me that hogwash hatched in academia that we simply “choose” our gender), then it shouldn’t matter anywhere else. If we’re forcing our troops to live with no distinction, why should we back home continue to enjoy the nicety of separate toilet facilities for men and women? We’re hypocrites.”

The Indy Channel: “Under the agreement, the Stocktons acknowledge they understand the city’s equal opportunity ordinance and agree to update the Just Cookies website concerning special orders.” (Settlement agreement linked at bottom of the report)

Inner City Press: “Little noticed were the ten countries which did not vote at all of the LGBT amendment, but were present and voting minutes later on the overall resolution on extrajudicial executions, on which 185 votes were cast.”

Matt DeLong writing in the Washington Post / 44: “On the eve of signing historic legislation to repeal the military’s ‘don’t ask, don’t tell’ policy, President Obama sat down in the Oval Office with Kerry Eleveld of the gay and lesbian magazine the Advocate. During the interview, Obama said his ‘attitudes are evolving’ on same-sex marriage — which he said he opposed throughout the 2008 presidential campaign.”

Yahoo: “The mayor of a Jewish suburb of Nazareth sparked outrage on Wednesday after refusing to allow Christmas trees to be placed in town squares, calling them provocative.”

CBS: “Iraqi Christians on Wednesday called off Christmas festivities across the country as al-Qaida insurgents threatened more attacks on a beleaguered community still terrified from a bloody siege at a Baghdad church two months earlier.”

ynetnews: “Israel’s Chief Rabbis Yona Metzger and Shlomo Amar on Monday called on all Israeli rabbis to fight the ‘abortion epidemic in our country.’”

Edmonton Journal: “‘It has no place in Alberta,’ Zwozdesky said, adding he has called for a review of the entire 300-page diagnostic code. ‘It is simply an incorrect and unacceptable classification and I’ve ordered it to be removed immediately.’”

The Hill: “An anti-abortion group announced Wednesday it will launch a widespread e-mail campaign to elect a like-minded Republican National Committee chairman. The Susan B. Anthony (SBA) List, which is co-sponsoring a Jan. 3 RNC chairman debate, said it will reach 500,000 socially conservative activists with its campaign.”

BBC: “A nine year old girl from Norfolk has had a life-saving transplant from a so-called saviour sibling . . . Megan’s parents, Katie and Andy from King’s Lynn, said they always wanted another baby, but natural conception would have given then just a one in four chance of having a child that was a perfect tissue match.”

Rob Boston writes at Americans United for Separation of Church and State / Wall of Separation: “[T]here are people out there bound and determined to use Christmas as another front in their misguided ‘culture war’ . . . Consider this column by David French, an attorney with the right-wing Alliance Defense Fund, which appeared on The Washington Post’s website. While I disagree with French’s views, he at least has the virtue of candor. He freely admits why the Religious Right carps on this issue so much – it’s a reminder to the rest of us that Christians (of his stripe) rule.”

Boston.com (AP): “The New Hampshire Supreme Court has thrown out a court order awarding visitation rights to a disabled 15-year-old girl’s grandparents, saying the wishes of her mother were not given enough weight.”

OneNewsNow: “A retired Army chaplain says that with the repeal of ‘don’t ask, don’t tell,’ many patriotic Christians may discourage their children from joining the armed forces.”

OneNewsNow: “A Dallas-based ministry is having a big impact in countries with limited religious freedoms by raising up new leaders in Belarus.”

FindLaw (AP): “A surge of Hispanic residents and other population gains have Texas poised to add more congressional clout than any other state, but a partisan fight now looms over exactly where the new seats should go.”

LifeNews: “The pro-life movement has received a significant legislative victory with today’s vote in the Senate passing a Department of Defense funding bill without a change in the policy prohibiting military base abortions.”

Telegraph: “Margaret Forrester passed the booklet to family planning staff at the health centre where she works because she felt that the NHS was not offering patients enough information about the risks associated with terminating a pregnancy. But Ms Forrester, 39, said she was suspended from her job as a psychological wellbeing practitioner based in Westminster because managers at Central North West London Mental Health Trust disagreed with her personal beliefs.”

Telegraph: Defiant Christian health worker refuses to stop handing out anti-abortion book

Telegraph: “For six months, Minati Khatua, 27, from Rourkela, Orissa, India, was told by her husband, who gave the name Sitakant Routray, that they could not consumate their marriage because ‘he’ was observing a religious ritual.”

The Christian Institute: “Sheffield’s Meadowhall shopping centre – one of Europe’s biggest – has blocked a performance of a classic Christmas song because it claims it must be ‘impartial on religion.’”

Reuters: “The United States succeeded on Tuesday in getting the United Nations to restore a reference to killings due to sexual orientation that had been deleted from a resolution condemning unjustified executions.” | Statement by the [White House] Press Secretary on Adoption of U.S. Sponsored Amendment to Ensure Gays and Lesbians Are Covered By UN Resolution on Extrajudicial Execution

Jakarta Globe: “While the antics of the hard-line Islamic Defenders Front frequently make headlines, other radical groups are working quietly behind the scenes to build a wide base of support, a nonprofit has said. The Setara Institute for Democracy and Peace on Wednesday released a report detailing how radical Muslim groups were shoring up their support by forging political alliances and embracing more liberal groups and moderate clerics.”

Korea Times: “Some 99.5 percent of defectors living in Seoul said that they had not had religious freedom in North Korea.”

The Globe and Mail: “China fired back at the Vatican on Wednesday after the Holy See’s recent criticism of Beijing’s religious appointments, calling such a move ‘dangerous’ and harmful to the Catholic church’s development in China.”

Phillip Blond writing at the BBC: “I hope to show that . . . church establishment in England creates a more diverse political and social life, prevents religious extremism and helps to minimise partisan conflict and secular violence . . . The religious heart of the British nation has helped to prevent Britishness from meaning any sort of merely ethnic racial identity. It has helped to protect us from a narrow sectarian nationalism.”

BBC: “The European Commission has rebuffed a call from several former Soviet bloc countries for the EU to legislate against the condoning or denial of totalitarian crimes.”

LifeNews: “In ‘UnPlanned,’ Johnson tells the dramatic story of the journey that unfolded as a result of that fateful day in September 2009 and how she literally ‘crossed the fence’ from Planned Parenthood leader to an advocate fighting for women in crisis – and the lives of their unborn babies.”

ynetnews.com: “Local Bedouin newspaper sparks calls on single Bedouin women who are over 30 to consider polygamous marriages, saying ‘it’s the Sharia solution’ . . . As polygamy is illegal in Israel, the people behind the ad campaign refuse to reveal their identities, but sign the ad as The Negev Committee for Women’s Rights.”

LifeSiteNews: “Andrew Stiles at National Review Online observes in a Dec. 20 analysis of Burr’s ‘surprising vote’ that the GOP caucus did not put up a vigorous defense of DADT. He quotes Sen. Bob Corker (R-Tenn.) admitting to NRO that repeal was ‘something people knew was going to happen.’ Corker said he believes that if Democrats actually did have hearings, even more Republicans may have jumped on board. These events should set off alarm bells for cultural conservatives: the message is no longer resonating the way it did in 1993.”

Ruth Institute Blog: “Dr. Jennifer Roback Morse of the San Diego-based Ruth Institute rightly argues that the rainbow is a sign of God’s covenant with man, and she says proponents of Proposition 8 – California’s measure that passed in 2008 to define marriage as between a man and a woman — are the original ‘rainbow coalition.’”

SCOTUSblog:

Title: Board of County Commissioners of Boulder County, Colo. v. Rocky Mountain Christian Church

Docket: 10-521

Issue(s): Whether the Equal Terms and Unreasonable Limitations provisions of the Religious Land Use and Institutionalized Persons Act of 2000 expand the scope of legal protection granted to religious exercise beyond that established by the First Amendment and thus violate the Establishment Clause and Section 5 of the Fourteenth Amendment.

Wall Street Journal editorial: “Under the 136-page rule, the federal government will now decide what counts as an ‘unreasonable’ rate increase, and HHS Secretary Kathleen Sebelius wrote to Governors yesterday urging them ‘to prevent unjustified and excessive health insurance premium growth.’ Apparently, ‘unreasonable’ means rate increases that exceed 10% next year, except when it doesn’t. If an insurer crosses this arbitrary threshold, ‘The review process would then determine if the increase is, in fact, unreasonable.’ So that’s cleared up.”

Boston Globe: “Governor Deval Patrick, deepening his imprint on the state’s highest court, nominated what would be its first Asian-American justice yesterday, declaring that the highest ranks of a state’s government should reflect the diversity of its people. He nominated Appeals Court Justice Fernande R.V. Duffly, 61, to fill the seat held by Roderick L. Ireland, who on Monday was elevated to chief justice, becoming the first African-American to lead the Supreme Judicial Court.”

Catholic Culture: “A week ahead of Christmas, half a dozen brutal attacks on Christian targets by Hindu fundamentalists have been reported from different parts of India.”

Associated Press: “Federal education officials are investigating a school district in a Central California town where a 13-year-old boy committed suicide after allegedly being harassed by classmates because he was gay, a spokesman for Education Secretary Arne Duncan confirmed Tuesday.”

Associated Press: “A Turkish news agency says a court has released a man whom prosecutors accuse of plotting to murder Jewish rabbis and the Istanbul-based leader of the world’s Orthodox Christians.”

LifeNews: “In the aftermath of the vote in the Canadian House of Commons on a bill the prevent forced and pressured abortions, Prime Minister Stephen Harper is coming under fire for opposing the measure . . . The legislation would have made it illegal for anyone to coerce a woman into an abortion through threats of violence, withdrawal of financial resources or denial of a place to live.”

ADF Attorney Gregory S. Baylor writing at Speak Up Movement / University: Did the University of Kentucky commit religious discrimination? It sure looks that way . . . It appears as though a candidate’s unwillingness to wholeheartedly embrace absolute atheism renders him or her ineligible to do scientific work at the University of Kentucky . . . [A] member of the committee wrote: ‘Clearly this man is complex and likely fascinating to talk with — but potentially evangelical.’ Uh oh . . . not that! A potential evangelical! Can’t have any of those around here!”

John Fund writing in the WSJ: “The Federal Communications Commission’s new ‘net neutrality’ rules, passed on a partisan 3-2 vote yesterday, represent a huge win for a slick lobbying campaign run by liberal activist groups and foundations. The losers are likely to be consumers who will see innovation and investment chilled by regulations that treat the Internet like a public utility.”

Charisma Mag: “‘No one should be taxing church attendance, but that’s what this tax does: it punishes churches based on their attendance,’ says ADF Senior Legal Counsel [Erik Stanley]. ‘Cleverly disguising a tax as a fee is just another way to penalize churches and other non-profit organizations and charities by subverting their tax exemptions so the government can collect more money. This driveway tax is simply outrageous. Will we soon be seeing a “sidewalk tax” based on the number of people who walk to church?’”

OneNewsNow: “‘The City of Mission has called this a “fee,” but in reality, this is actually a disguised property tax, and churches should be exempt,’ explains ADF attorney [Erik Stanley]. ‘But what the City of Mission has done is . . . an end-run around the property tax exemption of churches and tried to apply this fee to churches, when in reality, the churches should be exempt.’”

OneNewsNow: “The Alliance Defense Fund (ADF) is trying to encourage two locales that anti-religious groups have no constitutional standing to remove Christian aspects from Christmas . . . ‘Teachers can’t wish students “Merry Christmas;” they have to use the generic “Happy Holidays.” All religious displays or Christmas displays that say “Merry Christmas” have to be taken down, and even Christmas trees have to be referred to as “holiday trees,”‘ the attorney reports.”

The Kansas City Star: “Mission’s so called ‘driveway tax’ is coming under legal assault from an Arizona legal group that advocates religious freedom. Two local local churches, represented by the Alliance Defense Fund, have sued the city of Mission over a new fee intended to help pay for street improvements . . . ‘As bizarre as it sounds, churches are taxed for 5.8 trips per week per seat in their sanctuaries,’ [Erik Stanley] wrote. ‘The people of Mission, Kansas, therefore, are paying a tax every time they go to church.’”

ADF attorney Joe Infranco appeared on the Janet Mefford Show to discuss this: Swedish government’s 18-month-long seizure of 9-year-old boy pushing parents to emotional brink. | MP3 audio 19:17 mins

ADF attorney Daniel Blomberg and Grahm Zelinksi, Communications Director of the Wisconsin Democratic Party, appeared with Mark Halvorsen on WWIB (Wisconsin) to discuss the repeal. | MP3 audio 21:17 mins

ADF attorney Bradley Abramson appeared on WCHE with Mike Raffaele (Chester Co., PA).  MP3 audio 8:03 minutes. | ADF attorney Matt Sharp appeared on WFLA (Orlando, Fla.). MP3 audio 11:36 mins | ADF attorney David Cortman appeared on the Zeb Bell Show (Idaho).  MP3 audio 13:34 | David Cortman also appeared on the Hugh Hewitt Show (National).  MP3 audio 5:27 mins

Christian Post: “Nontheist and Freedom From Religious Foundation co-president Annie Gaylor joined atheists in Oklahoma to decry city council prayers . . . ‘It’s ridiculous that people have to think twice about whether it’s okay to publicly celebrate Christmas. An overwhelming majority of Americans celebrate Christmas and are opposed to any kind of censorship of it,’ ADF Senior Counsel [David Cortman] said in a statement Monday.”

Baptist Press: “[Roger Kiska], legal counsel for the Alliance Defense Fund (ADF) in Europe, said in a written release, ‘[I]t’s regrettable that Ireland lost on the third count despite such a lack of judicial record, physician consultation, or recourse to Irish courts.’”

Townhall (Baptist Press): “An Ohio judge has ruled a Planned Parenthood affiliate violated a state law involving an under-age girl in another example of misconduct uncovered among the abortion giant’s centers . . . ‘The health and safety of young girls is more important than Planned Parenthood’s desire to perform an abortion,’ said Brian Hurley, an Alliance Defense Fund-affiliated lawyer who is representing the girl’s parents in the case.”

“Gay rights advocates scored a hard-fought victory at the U.N. on Tuesday when member states restored a reference to sexual orientation, dropped last month from a resolution opposing the unjustified killing of minority groups.”

“Yesterday, the Tenth Circuit voted 5–4 not to rehear the Utah roadside cross memorial case, American Atheists, Inc. v. Duncan. The result, and the forceful dissents from denial of rehearing en banc, make it likely that the Supreme Court will agree to hear the case, and perhaps overturn the Establishment Clause endorsement test . . . ”

“[A]n informed source told CNSNews.com that the 31-member board has in fact voted to approve GOProud as a participating organization in the 2011 CPAC, and GOProud itself is saying that it has been approved as a participating organization.”

Survival of the Fittest: An Examination of the Louisiana Science Education Act
Robert E. Morelli, 84 St. John’s L. Rev. 797 (2010)

“This Note asserts that the Louisiana Science Education Act is likely to be found unconstitutional under the Establishment Clause of the United States Constitution. Part I will examine the progression and development of the failed creationist challenges to evolution, as well as provide the relevant framework used by the courts to evaluate Establishment Clause challenges to public school curricula. Part II will set out the social context and history of the LSEA itself. Part III will then proceed to examine the LSEA and its background under the framework established in Part I to show that it is unconstitutional.”

The State Action Principle and Its Critics
Lillian BeVier and John Harrison, 96 Va. L. Rev. 1767 (2010)

“Almost all of the Constitution’s provisions apply to governments, state and federal, and not directly to private people. But the legal rules of private people are protected by the government, which raises the question of whether exercises of those rights are ever subject to constitutional rules. The state action principle, which is a standard feature of American constitutional law, holds that, in general, the decisions of private people in the exercise of their legal rights are not attributed to the government for purposes of the Constitution, even though the government’s coercive power supports those rights. The state action principle has long been a matter of controversy, and several important contemporary scholars of constitutional law have criticized it, suggesting that it rests on a failure to understand that private rights rest on government coercion and that it interferes with the proper implementation of some important substantive constitutional rules. This Article defends the state action principle, arguing that it is conceptually coherent and reflects a vision of the Constitution that, although subject to debate as a normative matter, has much to be said for it. Rather than resting on a failure to see public power *1768 behind private rights, the principle is founded on the idea that private people, when they exercise private rights, are principals who are entitled to act on their own behalf. Government officers and institutions, by contrast, are agents acting on behalf of others. That distinction, not the presence of government coercion, supports the different treatment of private people exercising state-supported private rights and government actors exercising government power. The Article also argues that the state action principle does not undermine the constitutional norms that protect particular forms of liberty or that forbid certain forms of discrimination, as the critics suggest. Rather, the state action principle fits those protections for liberty and equality into a constitutional system in which the vast bulk of legal rules, including in particular the rules that give private people control over material resources, are found in the non-constitutional law and not the Constitution itself.”

The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement
David Schraub, 77 U. Chi. L. Rev. 1437 (2010)

“[T]his Comment asserts that the Equal Protection Clause should not focus on the relative political power of the disfavored group. Fundamentally, the wrong that increased judicial scrutiny is supposed to rectify is not measured by some baseline ‘proper’ level of political power. Rather, courts should provide special protection to certain groups to check against prejudicial or stereotyped treatment, demonstrations of animus that ought not be tolerated in a liberal society. The ability to secure passage of a few antidiscrimination provisions, or other high-profile political victories, does not in itself demonstrate that this prejudice is no longer salient. Focusing on the existence of animus, rather than power, better matches both the reasoning behind why courts are willing to intervene in the democratic process, as well as the actual mechanics governing when courts have launched such interventions.”

Evidence for Homeschooling: Constitutional Analysis in Light of Social Science Research
Tanya K. Dumas, Sean Gatesm and Deborah R. Schwarzer 16 Widener L. Rev. 63 (2010)

“Homeschooling is a time-honored and widespread practice. It often presents, however, a conflict between the constitutional right of parents to direct the education of their children and the State’s right to impose regulations in the interest of ensuring an educated citizenry. The Supreme Court has made it clear that any regulation impacting this constitutional right must be “reasonable.” The courts have therefore generally resolved homeschooling cases by examining whether state regulation of homeschooling places an unreasonable burden on the rights of parents. The courts, however, have altogether failed to address another, more fundamental question: whether the state regulation in fact advances the State interest. A regulation that fails this criterion cannot be ‘reasonable.’ Using the vehicle of a recent California appellate court case, in which the court initially upheld a regulation prohibiting parents from homeschooling their children unless they first obtained a state teaching credential, we show how recent social science research should impact the analysis. Instead of assuming away the issue of whether the regulation in fact advances the State interest, we show that this type of empirical research will allow courts to be able to answer this threshold question.”